WT/GC/W/791  
 
28 November  2019 
(19-8185) Page: 1/3 
General Council  
9-11 December 2019    
 
DRAFT DECISION  
FUNCTIONING OF THE A PPELLATE BODY  
Decision of …  
The General Council,  
Conducting  the function of the Ministerial Conference in the interval between meetings 
pursuant to paragraph 2 of Article IV of the Marrakesh Agreement Establishing the World Trade 
Organization (the "WTO Agreement "); 
Having regard to  paragraph 1 of Article IX of the  WTO Agreement;  
Mindful  of the work undertaken in the Informal Process of Solution -Focused Discussion on 
Matters Related to the Functioning of the Appellate Body, under the auspices of the General Council;  
Acknowledging  that the Appellate Body has, in some  respects, not been functioning as 
intended under the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(the "DSU");  
Recognizing  the central importance of a properly functioning dispute settlement system in the 
rules-based multilat eral trading system, which serves to preserve the rights and obligations of 
Members under the WTO Agreement and ensures that rules are enforceable;  
Desiring  to enhance the functioning of that system consistent with the DSU;  
Decides  as follows:  
Transitional  rules for outgoing Appellate Body members  
1. Only WTO Members may appoint members of the Appellate Body.  
2. The Dispute  Settlement Body (the "DSB") has the explicit authority, and responsibility, to 
determine membership of the Appellate Body and is obligated to fill vacancies as they arise.  
3. To assist Members in discharging this responsibility, the selection process to replace 
outgoing Appellate Body members shall be automatically launched 180 days before the expiry of 
their term in office.  Such sele ction process shall follow past practice.  
4. If a vacancy arises before the regular expiry of an Appellate Body member's mandate, or as 
a result of any other situation , the Chair of the DSB shall immediately launch the selection process 
with a view to filling  that vacancy as soon as possible.  
5. Appellate Body members nearing the end of their terms may be assigned to a new division 
up until 60 days before the expiry of their term.  
6. An Appellate Body member so assigned may complete an appeal process in which the or al 
hearing has been held prior to the normal expiry of their term.  WT/GC/W/791  
 
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  90 Days  
7. Consistent with Article 17.5 of the DSU, the Appellate Body is obligated to issue  its report 
no later than 90 days from the date a party to the dispute notifies its intention to app eal. 
8. In cases of unusual complexity or periods of numerous appeals, the parties may agree with 
the Appellate Body to extend the time -frame for issuance of the Appellate Body report beyond 
90 days.1 Any such agreement will be notified to the DSB by the parties and the Chair of the 
Appellate  Body.  
Scope of Appeal  
9. Article 17.6 of the DSU restricts matters that can be raised on appeal to issues of law covered 
in the relevant panel report and legal inter pretations developed by that panel.  
10. The 'meaning of municipal law' is to be treated as a matter of fact and therefore is not 
subject to appeal.  
11. The DSU does not permit the Appellate Body to engage in a 'de novo'  review or to 'complete 
the analysis' of the facts of a dispute.  
12. Consistent with Article 17.6 of the DSU, it is incumbent upon Members engaged in appellate 
proceedings to refrain from advancing extensive and unnecessary arguments in an attempt to have 
factual findings overturned on appeal, under DSU Article 11, in a de facto  'de novo  review'.  
Advisory Opinions  
13. Issues that have not been raised by either party may not be ruled or decided upon by the 
Appellate Body.  
14. Consistent with Article 3.4 of the DSU, the Appellate Body shall address issues raised by  
parties in accordance with DSU Article 17.6 only to the extent necessary to assist the DSB in making 
the recommendations or in giving the ruling s provided for in the covered agreements in order to 
resolve the dispute.  
Precedent  
15. Precedent is not created th rough WTO dispute settlement proceedings.  
16. Consistency and predictability in the interpretation of rights and obligations under the 
covered agreements is of significant value to Members.  
17. Panels and the Appellate Body should take previous Panel/Appellate Bod y reports into 
account to the extent they find them relevant in the dispute they have before them.  
'Overreach'  
18. As provided in Articles 3.2 and 19.2 of the DSU, findings and recommendations of Panels 
and the Appellate Body and recommendations and rulings of  the DSB cannot add to or diminish the 
rights and obligations provided in the covered agreements.  
19. Panels and the Appellate Body shall interpret provisions of the Agreement on Implementation 
of Article VI of the General Agreement on Tariffs and Trade 1994 i n accordance with Article 17.6(ii) 
of that Agreement.  
                                                
1 Such agreement may also be made in instances of force majeure . WT/GC/W/791  
 
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  Regular dialogue between the DSB and the Appellate Body  
20. The DSB, in consultation with the Appellate Body, will establish a mechanism for regular 
dialogue between WTO  Members and the Appellate Body where  Members can express their views on 
issues, including in relation to implementation of this Decision, in a manner unrelated to the adoption 
of particular reports.  
21. Such mechanism will be in the form of an informal meeting, at least once a year, hosted by 
the Chair of the DSB.  
22. To safeguard the independence and impartiality of the Appellate Bo dy, clear ground rules 
will be provided to ensure that at no point should there be any discussion of ongoing disputes or any 
member of the Appellate Body.  
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